Justice Dept. Backs Second Amendment's Individual Right to Bear Arms

Finally, the Justice Department and TalkLeft agree on something: That the Second Amendment conveys an individual right to keep and bear arms. This is the conclusion reached in a 93 page report written by DOJ's Office of Legal Counsel that was written last August but only released this past week. From the report itself:

The Second Amendment to the U.S. Constitution provides:

"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

The report examined the three principal views of the Amendment: The individual view, collective view and an intermediate one:

Under the "individual right" view, the Second Amendment secures to individuals a personal right to keep and to bear arms, whether or not they are members of any militia or engaged in military service or training. According to this view, individuals may bring claims or raise challenges based on a violation of their rights under the Second Amendment just as they do to vindicate individual rights secured by other provisions of the Bill of Rights. (1) Under the "collective right" view, the Second Amendment is a federalism provision that provides to States a prerogative to establish and maintain armed and organized militia units akin to the National Guard, and only States may assert this prerogative. (2) Finally, there is a range of intermediate views according to which the Amendment secures a right only to select persons to keep and bear arms in connection with their service in an organized state militia such as the National Guard.

While the Supreme Court has not taken a position, federal circuit courts of appeals have reached different conclusions. The Legal Counsel's office concludes:

...the text and structure of the Constitution support the individual-right view of the Second Amendment..... this view finds further support in the history that informed the understanding of the Second Amendment as it was written and ratified.

In legalese:

the text of the Second Amendment points to a personal right of individuals: A "right of the people" is ordinarily and most naturally a right of individuals, not of a State and not merely of those serving the State as militiamen. The phrase "keep arms" at the time of the Founding usually indicated the private ownership and retention of arms by individuals as individuals, not the stockpiling of arms by a government or its soldiers, and the phrase certainly had that meaning when used in connection with a "right of the people." While the phrase "bear arms" often referred to carrying of arms in military service, it also sometimes denoted carrying arms for private purposes. The Amendment's prefatory clause, considered under proper rules of interpretation, could not negate the individual right recognized in the clear language of the operative clause. In any event, the prefatory clause - particularly its reference to the "Militia," which was understood at the Founding to encompass all able-bodied male citizens, who were required to be enrolled for service - is fully consistent with an individual-right reading of the operative language. Moreover, the Second Amendment appears in the Bill of Rights amid amendments securing numerous individual rights, a placement that makes it likely that the right of the people to keep and bear arms likewise belongs to individuals. Finally, a consideration of the powers that the original Constitution grants or allows over the militia makes it unlikely that the Second Amendment would secure a collective or quasi-collective right.

For differing views by appellate courts, here's how the 5th Circuit and 10th Circuit view the issue.

< Peterson Jurors Give Play-By-Play of Deliberations Process | Senate Faces Debate on Malpractice Reforms >
  • The Online Magazine with Liberal coverage of crime-related political and injustice news

  • Contribute To TalkLeft

  • Display: Sort: